If Cook County state’s attorney Kim Foxx thought that the op-ed she published in the Chicago Tribune last night was going to put the Jussie Smollett debacle in her rear-view mirror, this one will probably be remembered as a swing and a miss. In a fashion typical of those who have been caught with their hand in the cookie jar, Foxx seeks to “answer the question” for all of her detractors, but then proceeds to answer a question that virtually nobody is asking while ignoring the larger issue at hand.
In order to show that we’re all on the same team here, Foxx begins by essentially throwing Smollett under the bus. She states unequivocally, “He has not been exonerated; he has not been found innocent.” She goes on to declare that seeing people faking a hate crime makes her “angry.” But then she unleashes the question she wants to answer.
So, why isn’t Smollett in prison or at least on trial? There are two different answers to this, both equally important.
First, the law. There were specific aspects of the evidence and testimony presented to the office that would have made securing a conviction against Smollett uncertain. In determining whether or not to pursue charges, prosecutors are required to balance the severity of the crime against the likelihood of securing a conviction. For a variety of reasons, including public statements made about the evidence in this case, my office believed the likelihood of securing a conviction was not certain.
The question isn’t one of why Jussie Smollett isn’t in prison or at least heading for trial. The grand jury probably left the state with more charges against him than were absolutely needed and the class 4 felonies in question frequently don’t result in significant jail time. I’m pretty sure everyone was aware of that. The real question was how your office decided to let him off entirely when everyone else involved in the case seemed to think it was a slam dunk. The idea that “securing a conviction” is ever certain in any case is a false argument. If the case has a strong enough body of evidence (as this one clearly seemed to) you move forward.
The second pressing issue is how the records were immediately sealed before anyone else even knew that the case was being dumped. Foxx pretends to address this issue while saying essentially nothing. (Emphasis added)
In the interest of full transparency, I would prefer these records be made public. However, in this case, Illinois law allows defendants in certain circumstances to request that public records remain sealed. Smollett chose to pursue that avenue, and so my office is barred from releasing those records without his approval.
Yes, the law allows for defendants in certain circumstances to request that public records be sealed. But it also allows for the prosecution to object to the request and demand reasons why they should be sealed. And the judge can reject the request. I’m sure anyone exposed as having done something truly awful would love to have all the records sealed. But that doesn’t mean that the court grants those requests routinely. Except in the case of juveniles, it’s actually quite rare and a compelling public interest in keeping them hidden would need to be made. Sealing these records serves the interest of nobody but Jussie Smollett and his future acting career.
Why was the request granted? How is it that nobody objected? Foxx has nothing to say on the matter. She also goes to great lengths to point out that it’s important to put truly dangerous criminals in jail and not simply “people we are angry at.” But as noted above, the probability of Smollett doing more than minimal time in the local jail was near zero. He’d most likely have gotten a fine and community service given his lack of any prior convictions. But at least he would have been convicted and the public could have seen the evidence.
This “explanation” from Foxx explains nothing. And Chicago is still left with a massive stain on its already dubious record of corruption among elected officials.